Stolen Valor Act Argument Transcript

The transcript of oral argument in United States v. Alvarez is now available here. Both sides received some intense questioning from some of the same Justices.

Justice Kennedy does not buy the argument that lies are completely unprotected except for "breathing space" limitations. However, he seems inclined to uphold the act on narrower grounds, if he can find some.

The defense side argument that medal frauds harm no one appears to be a nonstarter. Justice Sotomayor notes the outrage of legitimate medal winners. Justice Breyer notes that the Court upheld protection of the Olympic Committee's monopoly on the word Olympics, a matter of considerably lesser moment, and says, "All right. So I'm just saying in my mind there is real harm, and there is real harm and yet I can think of instances where we do want to protect false information."

The most important exchange may be this one:

JUSTICE KAGAN: Mr. Libby, let's suppose that I agree with Gertz that
there is no constitutional value in a false statement of fact, and the
reason why we protect some false statements of fact is to protect
truthful speech.

So if, if that's so, is -- how is it that this statute will chill any
truthful speech? What truthful speech will this statute chill?

MR. LIBBY: Your Honor, it's not that it may necessarily chill any
truthful speech. I mean, it's --we certainly concede that one typically
knows whether or not one has won a medal or not. We certainly -- we
concede that point.

JUSTICE KAGAN: So, boy, I mean, that's a big concession, Mr. Libby. Then you're saying, you can only win this case if this Court decides that the Gertz statement was a kind of overstatement, an exaggeration, puffery.

SG Verrilli pounced on that in his close. "As Respondent concedes, there is no chill here, so this statute is constitutional."

Update 2: Lyle Denniston has this post at SCOTUSblog claiming that the Court might "rewrite" the law to save it. By "rewrite," he means interpreting the law to prohibit only those false statements known to be false made in contexts where there is an intent to deceive, excluding mistakes, fiction, theater, parody, etc. As explained in our brief, however, this is standard practice for interpreting criminal statutes under the Morissette rule. Congress normally intends for crimes to have a mens rea element, and laws are interpreted as imposing strict liability only if they very clearly say so. In this case, as in Morissette, the implied mens rea is knowledge. As for excluding fiction, etc., the language of the statute itself, "falsely represents," is sufficient. A writer of fiction does not "represent" that his story is true. There is no "rewrite" at work here. Denniston's claim that this interpretation would mean "the Act that survives may well seem like a very thin version of the original" is mistaken, in my view. The Act as so construed would prohibit all the lies that its drafters intended to prohibit.

Over the course of an hourlong argument on Wednesday, the Supreme Court seemed gradually to accept that it might be able to uphold a federal law that makes it a crime to lie about military honors, notwithstanding the First Amendment's free speech guarantees. The justices were aided by suggestions from the government about how to limit the scope of a possible ruling in its favor and by significant concessions from a lawyer for the defendant.

Meanwhile, back on the editorial page, the NYT has a typically insight-free editorial, casually claiming, "Mr. Alvarez's lies were not inherently harmful to others, like libel or
obscenity, so they do not fall outside the First Amendment's coverage." But of course (1) there are many statutes punishing lies that are potentially but not inherently harmful which have never been thought to violate the First Amendment, some of which were mentioned during the argument, and (2) Alvarez's lies are inherently harmful.

David Savage reports in the LAT: "With the exception of Justice Sonia Sotomayor, none of the justices sounded as though they were convinced by a lawyer for Xavier Alvarez that the law should be struck down on 1st Amendment grounds." Will we get an 8-1? That would be good.

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1 Comment

The First Amendment allows certain practices that were valid at the time of the amendment was adopted. Thus, no one seriously contends that military chaplains are an unconstitutional establishment of religion. Well, there's a two-fer here. I don't think many people in the 1790s would have disputed that such a dishonorable lie could be punished. Plus, there is the fact that this is related to Congress' power to raise an army. The statute could probably be upheld on these two pillars.

I happen to think that the "no chill" argument is somewhat of a blind alley. Lies may not be protected as lies, but one thing we don't want to have is the government to be the arbiter of what is a lie when it comes to everyday speech. I also don't think it's constitutional for the government to impose a generalized duty not to lie subject to some exceptions.

I also wonder if this statute would be constitutional if it banned purely private false claims about the MOH. I don't know what interest the government has in non-public claims of valor.

Ultimately, I don't think that the language of the First Amendment renders government powerless in the face of public lies about military honors.